Ukraine Symposium – Cultural Property Protection in the Ukraine Conflict

Cultural heritage is once again in the crosshairs of an invading army. The Ukrainians, while concentrating on defending their homeland and their people, have nonetheless dedicated considerable efforts to the protection of cultural property, both movable and unmovable. And, much like previous warfare in the former Yugoslavia, religious and cultural ties are a significant aspect of the information and kinetic warfare in the region.

This post will address various issues related to the protection of cultural property, including the treaty law that applies, the practical issues that arise from those binding international law obligations, and the potential for war crimes prosecutions after the fact as a sanction or a deterrent for such conduct. The post will examine the obligations of both parties to the war in Ukraine and answer basic questions, such as, what efforts have the defenders made to protect cultural property? Is the obligation to protect cultural property separate from or paramount to the clear obligation to refrain from attacking civilians and other civilian objects? And what can be done to hold parties who violate these rules of warfare accountable?

Cultural Context

The cultural and religious ties between Ukraine and Russia are at the heart of Vladimir Putin’s rhetoric and justification for attacking Ukraine. In his recent speech on Ukraine he emphasized the unity of Ukraine and Russia, “Since time immemorial, the people living in the southwest of what has historically been Russian land have called themselves Russians and Orthodox Christians.” The founding of the Russian Orthodox Church by Prince Vladimir as the church of the Kievan Rus, a Slavic empire created along the Dnieper River in the 10th Century, has very much been the focus of Putin’s religious and cultural justification for war. Putin has cited the recognition of a separate Ukrainian Orthodox Church by the Ecumenical Patriarch in Constantinople as a reason to realign Ukrainians, both politically and religiously. And his speeches have emphasized that the Ukrainians have allegedly sought to assimilate and destroy the Russian culture and religion within Ukraine into a manufactured Ukrainian culture.

The recent renewal of conflict in Nagorno-Karabach should have emphasized the importance of preserving religious sites to Putin. In that conflict, Putin supported Christians who claimed to be the object of attack and whose cultural sites were allegedly destroyed. In Ukraine, some religious representatives have already claimed that churches have been the object of attack. The religious ties, especially between Orthodox Christians, should give all the more reason for both sides to protect iconic sites like the Monastery of the Caves and Saint-Sophia Cathedral, UNESCO World Heritage Sites near Kyiv (shown below). But it is unclear whether any form of protection for this and other sites will prevail against the indiscriminate shelling of civilian objects and civilians in general.

Photo by Maksym Kozlenko via Wikimedia Commons

In the first week of the war, the Ukrainians claimed that the Russians attacked a television tower in Kharkiv and caused collateral damage to a religious site commemorating the Holocaust (show below). Meanwhile, Ukrainians have made great strides in protecting both movable and unmovable cultural property.

Photo by Adam Jones via Wikimedia Commons

Nevertheless, UNESCO and world leaders in cultural heritage protection have expressed significant concerns about the potential for damage to cultural property in Ukraine. They insist that the parties must live up to their international obligations to protect the heritage of all mankind embodied in cultural objects throughout the battlespace.

International Law

But what are the treaties applicable under the Law of War, or the Law of Armed Conflict? Both Russia and Ukraine are parties to the 1954 Hague Cultural Property Convention, and Ukraine is a party to the Second Protocol. The Cultural Property Convention and its Second Protocol are the most specific treaties on the protection of cultural property. Both States are also parties to the more general Law of Armed Conflict treaties that contain protections for cultural property: the 1907 Hague Rules (HR) and the 1977 Additional Protocol I to the Geneva Conventions (AP I). Finally, while neither party is a member of the International Criminal Court, both States are parties to the European Convention on Human Rights (ECHR), which has enforced LOAC provisions in previous Russian conflicts (see Marko Milanovic’s excellent post in this series regarding ECHR application).

Under the 1907 Hague Rules, cultural property, along with other civilian objects, must be protected, provided they have not been converted to military objectives by the opposition:

Article 27: In sieges and bombardments, all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.

And Article 23(g) makes clear that destruction (or seizure) of civilian property can only be accomplished when “imperatively demanded by the necessities of war.” The Hague Rules (in Article 28) also prohibited the age-hold practice of looting territory that has been seized in war. These obligations of the attacker and defender have only been strengthened by subsequent treaties.

After the horrendous destruction of cultural heritage in the Second World War (see Rape of Europa, by Lynn Nichols), the international community sought to strengthen the protection of movable and immovable cultural property in the 1954 Hague Cultural Property Convention. The Convention expanded the definition of cultural property to include “movable and immovable property of great importance to the cultural heritage of every people,” to include: “monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books …; as well as scientific collections” and the buildings that house them, along with centers containing monuments and collections (Article 1).

Ukraine has all these types of cultural property, beginning with the UNESCO World Heritage Sites mentioned above, ranging to religious and secular sites, libraries, and collections of art, and including monuments to the Holocaust and the “Holodomor,” the great famine caused by Stalin that killed millions of Ukrainians. In fact, early in the war, UNESCO raised the alarm about threats to these sites and warned of the need to mark them with the Blue Shield emblem that was adopted by the 1954 Hague Cultural Property Convention (Article 6) to protect cultural heritage.

The 1954 Hague Convention requires State parties to safeguard and respect cultural property (Articles 2-4). These provisions include obligations to refrain from attacks on cultural property and from damaging or directing “any act of hostility,” looting, or reprisal against such property. Defenders are required to not only mark, but also to refrain from military use of cultural sites and ensure that military objectives are located away from these sites. Despite these legal obligations, Russian forces have already been accused of attacking a 16th Century cave complex and monastery in the Donetsk region and damaging the mosque of Sultan Suleiman the Magnificent in Mariupol. Russian forces also allegedly looted the Vasylivka Historical and Architectural Museum, also known as the Popov Manor house, according to the museum director.

Imperative Military Necessity

Few of these Russian operations, on their face, seem justifiable for reasons of “imperative military necessity,” the standard for targeting or turning a cultural site into a valid military objective in the 1907 Hague Rules and the 1954 Hague Convention. AP I adds targeting rules to assist the commander in interpreting the obligations with regard to respect of cultural property. Although Articles 52 (General Protection of Civilian Objects) and 53 (Protection of Cultural Objects and Places of Worship) add little substantively to the definitions and requirements of the Hague Rules and the 1954 Cultural Property Convention, they reinforce the rules outlined above. But the definition of military objectives, in Article 52, generally informs “military necessity”:

(2) Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

(3) In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

These provisions from AP I are relevant to the attacker and the defender. Defenders should presume that they have put cultural property at risk if they convert that property to a military objective, principally by use. Additionally, the “precautionary measures” contained in Articles 57 and 58 provide guidance to prevent attacks on cultural property. Concomitantly, the attacker can analyze a cultural object to determine whether it is significantly contributing to military action and whether its destruction offers a definite military advantage; under AP I, cultural property, like other civilian objects, is presumed to not qualify for direct attack.

Obligations of an Occupying Power

The 1907 Hague Rules, the 1954 Hague Convention, the Geneva Convention (IV) for Protection of Civilians (GCIV), and AP I all provide guidance for occupying powers that reinforce the requirements to safeguard and respect cultural property. The Hague Rules require the occupying power to restore public order and safety (Article 43), respect public buildings (Article 55), and protect public institutions devoted to religion, charity, arts, and historic monuments (Article 56). The occupation rules of the 1954 Hague Convention require the occupier to support “competent authorities,” preserve cultural property, in close cooperation with those authorities, and to ensure the military respects cultural property (Article 5).

It is too soon in the conflict to analyze how and where the Russians have complied with these provisions. Suffice it to say, the occupying power generally is required to restore the status quo ante after the occupation has ended; under occupation law, once it exercises effective control over occupied territory, Russia has substantial obligations to mitigate damage and work with “competent authorities” to further preserve and protect the cultural heritage of this region.

War Crimes

Have Russian forces committed war crimes in Ukraine with regard to the destruction of cultural property? The jury is certainly out on this issue, as the “circumstances ruling at the time” are yet to be determined. Any prosecutor will have to prove that the perpetrator intentionally targeted protected cultural property or (in the alternative) that the destruction of that property was extensive and wanton, requiring gross negligence in targeting. Ukraine’s 2014 ad hoc acceptance of ICC jurisdiction on its territory and the ICC Prosecutor’s initiation of an investigation brings into play the provisions of Rome Statute Articles 2(a)(iv) (Grave Breaches from the Geneva Conventions, including wanton destruction) and 2(b)(ix) (intentionally directing attacks against cultural property). Both the International Criminal Tribunal for the former Yugoslavia (in the Dubrovnik Case) and the ICC (in the Mali Case) have established jurisprudence in this area.

Furthermore, these crimes have, as their origin, an obligation to prevent and punish crimes outlined in the Geneva Conventions and API, both of which have been adopted by the parties to this conflict. As such, Russia and Ukraine will be required to establish sanctions for this misconduct, and the crimes will be the object of universal jurisdiction where States have adopted that approach. The grave breach provisions of the GC IV, Article 147, include “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” AP I, in Article 85, classifies as a grave breach willful destruction of civilian objects, when death or serious bodily injury results. And the 1954 Hague Convention requires State parties to “take all necessary steps to prosecute and impose penal sanctions” on individuals responsible for breaches of the Convention. Where there is a national will to punish war crimes, those crimes will be pursued; interested States, like Germany of Spain, may choose to apply their national law, via universal jurisdiction, to punish those who believe they are free from national or international jurisdiction.

International Committee of the Blue Shield

What is the role of civil society in ensuring that cultural property is protected? The Second Protocol to the 1954 Hague Cultural Property Convention, along with adopting the Blue Shield to protect cultural property, adopts the “Red Cross” model for the protection of cultural property during armed conflict. Article 11 of the Second Protocol recognizes the special expertise of the International Committee of the Blue Shield (ICBS) in providing advice to UNESCO and the implementing committee of the Second Protocol. ICBS consists constituent civil society organizations that represent museum, monument, archival, archaeological, and library communities throughout the world.

The United States has established a U.S. Committee of the Blue Shield (USCBS)[1] to be a national representative to the ICBS and interface between the military and civil society organizations and individuals to enhance the protection of cultural property in armed conflict. The USCBS has assisted the U.S. military and NATO, for example, in establishing the “experts” required by the 1954 Hague Convention, training them, and identifying sites of protected cultural property all over the world (enabling the establishment of “No-Strike Lists” within the targeting system, while still protecting those sites from the prying eyes of looters). These organizations are an important means of ensuring that the expertise resident in civil society communicates with governmental officials to ensure the protection of cultural heritage.

Conclusion

Cultural property, like all civilian property, is protected from direct attack. But the States party to the 1954 Hague Cultural Property Convention have adopted safeguards that require States to go above and beyond in the obligation to respect and protect the cultural heritage of a nation during armed conflict. There is certainly much to protect in Ukraine. Hopefully, awareness of the existence of cultural heritage and attention to the international obligations of the parties will prevent the needless destruction of the tangible heritage of this great nation.

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Colonel (Retired) Richard B. “Dick” Jackson served the Special Assistant to the U.S. Army Judge Advocate General for Law of War Matters.

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Footnotes

[1] In the interest of full disclosure, the author was the Vice President of USCBS from 2010 to 2019.

Photo credit: Enrico Strocchi via Flickr